Wednesday, December 28, 2016
THE CATEGORICAL APPROACH DOES NOT APPLY TO A CONTEMPORANEOUS CRIME OF VIOLENCE AND A VIOLATION OF 18 U.S.C. § 924(c)
In two cases decided on December 19, 2016, United States v. Robinson, No. 15-1402, 2016 WL 7336609 and United States v.Galati, No. 15-1609, 2016 WL 7336610, the Circuit adopted a novel approach to addressing whether an offense qualifies as a crime of violence under 18 U.S.C. § 924(c). The Circuit held that the categorical approach, which directs a court to look only at the elements of the particular offense of conviction to determine whether it qualifies as a crime of violence (See Taylor v. United States, 495 U.S. 575 (1990)), does not apply when a 924(c) conviction is contemporaneous with the conviction for a crime of violence. The Court said that this is because the record of all necessary facts are before the district court. The facts of the charged offenses, either determined by a jury (as in Robinson) or admitted by the defendant during a guilty plea, unmistakably shed light on whether the purported crime of violence was committed with “the use, attempted use, or threatened use of physical force against the person or property of another.”
The defendant in Robinson was convicted of Hobbs Act robbery and of brandishing a firearm during a crime of violence (the Hobbs Act robbery). The Circuit considered the language of the Hobbs Act robbery statute in conjunction with the brandishing conviction under Section 924(c). The Court said that looking at a contemporaneous conviction allows a court to determine the basis for a defendant’s predicate conviction and the defendant suffers no prejudice because the court is not finding any new facts which are not already of record. The Circuit framed the question as whether a Hobbs Act robbery committed while brandishing a firearm is a crime of violence and concluded that the answer must be yes.
Judge Fuentes filed a concurring opinion. He explained that the categorical approach should be used even when the convictions are simultaneous. However, he concludes that Hobbs Act robbery is categorically a crime of violence under 924(c)(3)(A), finding persuasive a Second Circuit decision, United States v. Hill, 832 F.3d 135 (2d Cir. 2016), that all the alternative means of committing a Hobbs Act robbery satisfy the force clause.
In Galati, the defendant was convicted of using interstate commerce facilities in the commission of a murder-for-hire, in violation of 18 U.S.C. § 1958, and discharging a firearm during a crime of violence (the murder-for-hire). The Circuit framed the question as whether a violation of Section 1958 which results in personal injury and during which a firearm is discharged is a crime of violence and concluded that it is a crime of violence. The Court noted that the discharge of the firearm coupled with resulting personal injury qualifies as the use of physical force.
The Circuit declined to address the defendants’ challenge to the residual clause in 18 U.S.C. § 924(c)(3)(B).
It appears that under the Circuit’s logic a contemporaneous conviction of any crime along with a 924(c) conviction of either brandishing or discharging a firearm will qualify as a crime of violence under the force clause of 924(c)(3)(A).
Amendment 801 to § 2G2.2(b)(3)(F) is a substantive change to the Guidelines, and does not apply retroactively under § 2255
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